[PROPOSED] PROTECTIVE ORDER
MICHAEL R. WHILNER, Magistrate Judge.
To expedite the flow of discovery materials, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that only materials the parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed.R.Civ.P. 26(c), it is hereby ORDERED THAT:
INFORMATION SUBJECT TO THIS ORDER
1. Each party may designate as confidential for protection under this Order, in whole or in part, any document, information or material that constitutes or includes, in whole or in part, confidential or proprietary information or trade secrets of the producing party or a third party to whom the producing party reasonably believes it owes an obligation of confidentiality with respect to such document, information or material ("Protected Material").
2. In determining the scope of the information which a party may designate as its Protected Material, each party acknowledges the importance of client access to information necessary to client decision-making in the prosecution or defense of this litigation, and therefore agrees that designations of information as Protected Material and responses to requests to permit further disclosure of Protected Material shall be made in good faith and not (a) to impose burden or delay on an opposing party or (b) for tactical or other advantage in litigation.
3. With respect to documents, information or material designated with any confidentiality designation ("Designated Material") under this Order, subject to the provisions herein and unless otherwise stated, this Order governs, without limitation: (a) all documents, electronically stored information, and things, regardless of the medium or manner in which it is generated, stored, or maintained, as defined by the Federal Rules of Civil Procedure; (b) deposition testimony; (c) affidavits; and (d) stipulations. All copies, reproductions, extracts, digests and complete or partial summaries prepared from any Designated Material shall also be considered DESIGNATED MATERIAL and treated as such under this Order.
TIMING OF DESIGNATIONS
4. A designation of Protected Material (i.e., "CONFIDENTIAL, " "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, " or "HIGHLY CONFIDENTIAL - SOURCE/OBJECT CODE") must be clearly so designated before the Protected Material is disclosed or produced. However, inadvertent or unintentional production of documents, information or material that has not been designated shall not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party that inadvertently or unintentionally produces Protected Material without designating it may request destruction of that Protected Material by notifying the recipient(s), as soon as reasonably possible after the producing Party becomes aware of the inadvertent or unintentional disclosure, and providing replacement Protected Material that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently or unintentionally produced Protected Materials and any documents, information or material derived from or based thereon.
5. "CONFIDENTIAL INFORMATION" shall mean all documents, information or material that is produced for or disclosed to a receiving party that the producing party, including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or a court order, believes is not publically known, and which the producing party would not normally reveal to third parties or, if disclosed, would require such third parties to maintain in confidence, whether embodied in physical objects, documents, or the factual knowledge of persons; and that has been so designated by the producing party.
6. The following information is not CONFIDENTIAL INFORMATION:
(a) any information which at the time of disclosure to a receiving party is in the public domain;
(b) any information which after disclosure to a receiving party becomes part of the public domain as a result of publication not involving a violation of this order;
(c) information that the receiving party can show was lawfully in the receiving party's possession prior to being designated as Protected Material in this litigation and that the receiving party is not otherwise obligated to treat as confidential;
(d) information that the receiving party can show was obtained (without any benefit or use of Protected Material) from a third party having the right to disclose such information to the receiving party without restriction or obligation of confidentiality;
(e) information that the receiving party can show by written record was independently developed by it after the time of disclosure by personnel who did not have access to the producing party's Protected Material, or
(f) information that was submitted to a governmental entity without request for confidential treatment.
7. CONFIDENTIAL INFORMATION may be disclosed only to the following persons where such persons require such information and will use such information only for purposes of preparation and litigation of this matter:
(a) the parties' outside counsel of record in this action and employees of such counsel assigned to and necessary to assist such counsel in the preparation and trial of this action, including but not limited to attorneys, paralegals, law clerks, and stenographic and clerical employees, and excluding consultants, experts and investigators;
(b) subject to the requirements of paragraphs 15-17, Technical Advisers, provided such persons first sign copy of the Confidentiality Agreement, appended hereto as Exhibit B. The term "Technical Advisers" shall mean an outside person (who is not an employee of a party) such as a proposed expert witness or outside consultant, with whom counsel may deem it necessary to consult concerning technical, financial, or other aspects of this case for the preparation of trial thereof (with disclosure only to the extent necessary to perform such work);
(c) graphics, translation, design, jury and/or trial consulting services, including mock jurors, retained by a party or counsel, provided, if such persons are not employees of counsel, they first sign copy of the Confidentiality Agreement, appended hereto as Exhibit A;
(d) data processing vendors, photocopy, document imaging and database services, and consultants retained by outside counsel of record or a party to set up, maintain, and/or operate computer systems, litigation databases or to convert data for inclusions in such databases; and
(e) the Court, its technical adviser (if one is appointed), persons employed by the Court, jurors, mediators, and court reporters or videographers in this action or any appeal therefrom;
(f) at a deposition, any person who authored or previously received the Protected Material and, subject to timely objection including objection that such person is not internally authorized to receive such information, any person currently employed by the designating party; and
(g) subject to the requirements of paragraphs 11-13, no more than two in-house counsel who act in a legal capacity for the receiving party in preparation and trial of this action and one employee of such counsel assigned to and necessary to assist such counsel in the preparation and trial of this action, including, for example, attorneys, paralegals, law clerks, and stenographic and clerical employees, provided such persons first sign copy of the Confidentiality Agreement, appended hereto as Exhibit A.
HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
8. CONFIDENTIAL INFORMATION may be additionally designated HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY. The HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY designation is reserved for information that constitutes proprietary financial or technical or commercially sensitive competitive information that could cause significant competitive harm if disclosed to an unauthorized person. Such information includes, without limitation, trade secrets or other confidential research, development, technical, financial, or commercial information, pending but unpublished patent applications, information concerning research, development and other activities related to unreleased products, license agreements and other highly confidential technical, research and development, and financial information, information obtained from a non-party pursuant to a current Nondisclosure Agreement ("NDA"), information relating to current and future products not yet commercially released, strategic plans, technical documents that refer to or relate to trade secrets, and settlement agreements or settlement communications, the disclosure of which is likely to cause harm to the competitive position of the producing party. This designation shall be made in good faith.
9. HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY INFORMATION may be disclosed only to the parties designated in paragraphs 7(a)-(f).
HIGHLY CONFIDENTIAL - SOURCE OR OBJECT CODE
10. Should the production of computer source or object code become necessary, through discovery between the parties or by Order of the Court in the event the parties disagree on source or object code production, the parties agree to cooperate to supplement this protective order with a HIGHLY ...